State ex rel. Steinberger v. Schulein

• Decision Date: 31 March 1870
• Citation: 45 Mo. 521
• Parties: THE STATE OF MISSOURI, TO THE USE OF LEOPOLD STEINBERGER, Appellant, v. JACOB SCHULEIN et al., Respondents.
• Court: Missouri Supreme Court

45 Mo. 521

THE STATE OF MISSOURI, TO THE USE OF LEOPOLD STEINBERGER, Appellant,

v.JACOB SCHULEIN et al., Respondents.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

H. A. Haeussler, for appellant.

The fourth instruction for respondent is fatal in stating that it must be such a change of possession or control of the property as to indicate or show to persons or purchasers at large that the vendees, Waterman & Bruckheimer, were no longer in possession or control of the goods, and that such visible and exclusive possession commenced at the time of sale, or within a reasonable time thereafter; whereas all the law requires is some open, notorious, or visible act, as would impart notice to a prudent man (42 Mo. 450), or persons that were accustomed to deal with the store, that a change had taken place. The instruction was entirely too broad, and misled the jury in saying “persons or purchasers at large;” this would include everybody that had never before dealt with the parties. There is nothing in the Rosenberg case (42 Mo. 439) which seemed, at trial, to be the main reference of the court in the giving and refusing of instructions to warrant the court in refusing this instruction. (42 Mo. 444; 43 Mo. 593.)

Krum, Decker & Krum, for respondents.

I. The instructions given to the jury, taken all in all, fairly put the issues involved to the jury. The issues were: fraud in fact, of which the purchaser had notice, and fraud in law.

II. The statute declares that every sale of goods made with the intent either to hinder or delay or defraud any creditors, shall be void as to such creditors. Although a valuable consideration be proved, yet if one of the motives of the seller is to hinder or delay or defraud any creditor, this intent avoids the sale where the purchaser had knowledge of such intent. (Potter v. McDowell, 31 Mo. 62; Potter v. Stevens, 40 Mo. 229.)

III. Nemo ex proprio dolo consequitur actionem (Broom's Leg. Max. 266 et seq.) is applicable to the case made in this instruction, which is supported by the evidence. It is a fraud in morals and in law to allow Steinberger to acquire a title to the goods which were obtained by his own fraud, and to permit the very claim, the concealment of which constituted the fraud, to be now set up as the lawful valuable consideration, against the very party who, by his concealment, parted with these same goods. (Viele v. Goss, 49 Barb. 96; Bean v. Wills, 28 Barb. 467; Brown v. Montgomery, 20 N. Y. 387; Bennett v. Judson, 21 N. Y. 238.)

IV. The instructions upon this point are strictly in conformity with the law and the repeated decisions of this and other courts upon similar statutes. (Claflin v. Rosenberg, supra;Lesem v. Hereford, 44 Mo. 323.) This court has held that there must be a substantial change of possession; that a concurrent possession with the vendor is colorable; that there must be an exclusive possession of the goods; that the vendee's possession can not be formal or temporary, but must be open, notorious, and unequivocal; that there must be a complete change of dominion and control over the goods, and not a joint or concurrent possession. That such real, open, exclusive possession did not exist here, is admitted by plaintiff himself.

BLISS, Judge, delivered the opinion of the court.

Schulein, Sulsbacher and Hyman obtained judgment against Waterman & Bruckheimer, and levied upon certain goods as their property. Steinberger, for whose use this suit is brought, notified the sheriff that he claimed the goods, whereupon defendants executed a bond...